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Local lawyer bringing some appeal to appellate law

By Mary Worrell, Inside Business – Hampton Roads, May 29, 2006

“I’m going to jail on Thursday…just visiting, of course,” said L. Steven Emmertof the Virginia Beach law firm Sykes, Bourdon, Ahern and Levy.

It is with this easy-going humor and style that Emmert writes analyses for his Web site www.virginia-appeals.com. Emmert created the site so area lawyers could get quick updates on decisions from the Supreme Court and appeals courts of Virginia that may impact their cases.

“What I wanted to do was pay back the legal community that has given me so much,” Emmert said. “I saw an opportunity for lawyers to become heroes to their clients.”

Analyses of decisions are posted to the site within hours. A lawyer can inform a client about an applicable case quickly, which can show the client the lawyer is on top of things, Emmert said.

Appellate law, said Emmert, is a tricky business with an entirely different set of rules and time lines from trial law. Many clients don’t want to bring new lawyers into the case at the point of appeal.

“A lot of businesses just go with the trial lawyers for the appeal, because it’s a perceived cost-saving thing,” Emmert said. “They don’t want to bring the appeal lawyer up to speed on the case.”

But many trial lawyers have little to no experience in the appeal process and the margin for error at the appellate court level in Virginia is very high, Emmert said. He points to the informal one-strike rule in the Court of Appeals of Virginia that differs from the three-strike rule in the Supreme Court of Virginia – a no-tolerance policy. If a lawyer makes a procedural mistake in a Virginia appellate court, he or she can be referred to the Virginia State Bar for discipline.

This is just one of the facts Emmert uses in his essays and analyses to stress the importance of understanding the appeal process to his colleagues. In a presentation he gives called “The Ten Commandments of Appellate Law, New Testament Version,” Emmert admonishes lawyers, “Thou shalt not dabble.”

Emmert said getting good at the appeal process takes practice, but lawyers don’t get many opportunities to practice.

“Don’t take it as a sideline – something you can do seven or eight hours out of the year and be good at it,” Emmert said. “It’s something you have to cultivate after law school.”

Paul Samakow is a lawyer in Northern Virginia who hired Emmert to handle the appeal of a big case. Samakow said he’d never had a case that needed to be appealed in the 25 years he has been practicing, so he went looking for an experienced appellate lawyer and Emmert’s name kept coming up.

“No one is prepared after law school – especially not for the appeal process,” Samakow said. “There are a lot of places you can falter, so why risk it? The stakes are too high.”

Emmert said trial lawyers often make the mistake in appellate courts of arguing like they’re in a trial.

“If lawyers use the trial approach in appellate court, it won’t work,” Emmert said. “You don’t have witnesses to bail you out or make you look good. You have to think differently.”

Emmert is quickly gaining notoriety among lawyers for his Web site and appellate expertise, but he recently caught the attention of hockey fans while defending a player from the Norfolk Admirals in a workers’ compensation case.

The player injured his shoulder in a fight on the ice and sought workers’ compensation. Emmert successfully argued “fighting is an integral part of hockey” and secured the claim for the player.

Emmert is a self-proclaimed hockey fan and works as a freelance writer in his spare time for the Web site www.rotowire.com.

He said he enjoys appellate law, because of the chance it gives him to influence Virginia law.

“If I handle a trial, I can remedy only one injustice at a time, but in an appeal I can remedy a thousand injustices, because the decision becomes part of the legal doctrine,” Emmert said. “There’s a thrill in knowing what I say will matter to 7 million people.”

Many lawyers don’t see the splash of appellate law, Emmert said, but he is trying to remedy that by holding symposia and seminars on the topic.

Sandra Rohrstaff is a lawyer from Fairfax and vice president of the Virginia Trial Lawyers Association. Rohrstaff said she considers Emmert’s Web site a valuable resource.

“These laws are very different and very exact,” Rohrstaff said. “Steve has the ability to make something unclear clear.”

Rohrstaff also said that Emmert’s presentation “The Top Ten Ways to Lose Your Appeal” attracted a full house at a recent seminar, a sign that lawyers are eager to understand the appeal process even if they only use it a couple times in their careers.

The nonprofit organization Virginia Continuing Legal Education holds numerous workshops and seminars each year, but discontinued its seminar on appellate law due to a lack of demand, Emmert said.

“People told me that I couldn’t just do appellate law – that I’d starve,” Emmert said. “I’m not going to listen to conventional wisdom.”

Interestingly, Emmert’s generosity with his knowledge about appellate law hasn’t cost him anything and has only added to his case load. In trying to help his colleagues better understand a blurry line of the law, he in turn created a positive reputation for himself.

Rather than say, “I’ll give you my advice, but you have to pay,” Emmert said he gives it away.

“I don’t know what the next year will be,” he said, “but at least I’m doing something I like.”